BIRJA NAND, SON OF SHRI KAMLA NAND, RESIDENT OF VILLAGE DHAMBARI, TEHSIL CHRIGAON, DISTRICT SHIMLA, H.P. Vs. RUKMI NAND, SON OF SHRI NEK SINGH, RESIDENT OF VILLAGE GAJYANI, TEHSIL CHRIGAON, DISTRICT SHIMLA, H.P.

JUDGEMENT

(1.) THIS is a regular second appeal filed by the appellant under section 100 C.P.C. against the judgment and decree, dated 16.11.2002, passed by the learned Additional District Judge, Shimla, vide which he affirmed the judgment and decree, dated 13.9.2001, passed by the learned Sub Judge, Court No. 2, Rohru, District Shimla, H.P., decreeing the suit of the respondent for possession as against the appellant. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as the plaintiff, filed a suit for possession as against the appellant, hereinafter also referred to as the plaintiff. It was alleged by the plaintiff that he had purchased the suit land comprised in khasra No. 977, 978, 1067/1065 from one Sunpur in the year 1976 vide registered sale deed. The plaintiff was employed in Indian Army and the defendant, in his absence, took possession of the disputed land. It was further alleged that one of the khasra No. 87 (new) is shown in possession of the defendant, but the same is in possession of the plaintiff as an orchard. The plaintiff requested the defendant to hand over the possession but he refused. Thereafter, the plaintiff filed a suit but the same was withdrawn on some formal defect vide order dated 8.8.1996. The plaintiff filed the suit thereafter for possession.

(2.) DEFENDANT contested the suit on maintainability etc. On merits, he took up the plea that Sunpur had no legal right to alienate the suit land in favour of the plaintiff since he had already sold the land to the defendant vide document dated 29.6.1976, with possession. He also pleaded that in part performance under Section 53A of the Transfer of Property Act, he is in possession of the suit land. He also took up the plea in the alternative that the plaintiff's possession became adverse to the defendant and as such he is owner in possession of the suit land. On the pleadings of the parties, the following issues were framed by the learned trial Court:

(3.) WHETHER the plaintiff is estopped from filing the present suit on account of his acts, deeds and conduct? OPD